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D7AR POIXTEHB OF COHGHESS. 



SPEECH 



OF 5 ^Z* 

HON. CHARLES SUMNER, 

OF MASSACHUSETTS, 

ON THE HOUSE BILLS FOR THE CONFISCATION OF PROPERTY AND THE LIBERATION 
OF SLAVES BELONGING TO REBELS, 

DELIVERED 

In Senate of the United States, June 27, 1862. 



Mr. SUMNER said : 

Mr. President, too tardily tlie house of a 
rebel general in Virginia has been taken by 
the Government and set apart as a military 
hospital for the reception of our soldiers, wound- 
ed and maimed in battle. At least three 
churches here in Washington have been seized 
and occupied for the same purpose. All ap- 
plaud these acts, which make the house more his- 
toric and the churches more sacred than ever 
before. But pray, sir, under what authority is 
this done? Not according to any contractor 
agreement ; not according to any due process 
of law ; not even according to any statute. 
And yet the language of the Constitution is 
positive : " no soldier shall, in time of peace, 
be quartered in any Jiouse without the consent 
of the owner; nor in time of war but in a man- 
ner to be prescribed by law." If it be time of 
peace now, then is the Constitution violated by 
quartering soldiers in these houses without the 
consent of the owner. If it be time of war 
now, then is the Constitution violated by quar- ) 
tering these soldiers in a manner not prescrib- 
ed by law — if, indeed, the provisions of the 
Constitution are not entirely inapplicable to 
what is done under the military requirements 
of self defence, which is a supreme law above 
all other laws or constitutions devised by men. 
But if the Constitution, in a case where it is 
singularly explicit, can be disregarded without 
question in the exercise of the Rights of War, 
it is vain to invoke its provisions in other cases, 
where it is less explicit, in restraint of the Rights 
of War. 

It js true that the Constitution ambiguously 
provides against certain forfeitures as an inci- 
dent _ to an •' attainder " of treason ; it also 
positively prohibits " ex post facto laws," 
and It nobly declares that " no person shall 
be deprived of life, liberty, or property, 



[without due process of law." But there 
[is nothing in the House bills for the con- 
fiscation of property or the liberation of slaves 
which IS obnoxious to either of these provis- 
ions. There is no attainder of treason, no ex 
post facto law, and no taking of property with- 
out due process of law ; for the judicial pro- 
ceedings which these bills institute are compe- 
tent for the purpose. The House bills are not 
criminal statutes, nor do they institute criminal 
proceedings. Therefore do I say unhesitatingly 
that thesebills are above constitutional objec- 
tion. It is not too much to say, sir, that they 
are as constitutional as the Constitution itself. 
It was once said of a subtile spirit of criticism 
that it would find a heresy in the Lord's prayer ; 
and such a spirit, permit me to say, is needed 
to find anything unconstitutional in these 
j bills. 

; Of course, in assuming the complete cousti- 
[ tutionality of these bills, which already have 
the sanction of the House of Representatives, I 
assume as a cardinal principle of constitutional 
law thai, whatever may be the condition of 
slaves in the States and under State laws, they 
are, under the Constitution of the United States, 
persons, and not property ; so that, in declaring 
their emancipation, Congress is not constrained 
by any of the constitutional requirements with 
regard to property. Whatever may be the 
claims of property, slaves are men, and I but 
repeat an unquestionable truth of morals, con- 
firmed by our Declaration of Independence, 
when I say that there can be no property in 
men. Mr. Winter Davis, of Baltimore, has re- 
minded the country that Congress, on the mo- 
tion of Mr. Clay, has already undertaken to de- 
clare the freedom of slaves without any " due 
process of law," and the present Congress, by 
a bill of the last session, setting free slaves ac- 
tually employed in the rebellion, has done the 



tion derived from the Constitution, and how 
vain also to offer a penal statute, under the 
Peace Powers of the Constitution, as a war 
measure. War is war. Better arrest it at 
once, if it is to be war on the one side and 
peace on the other; if our enemies are to em- 
ploy against us all the Rights of War, while we 
can employ against them only the Rights o( 
Peace. Penal statutes are good for peace, 
when laws prevail ; but in the midst of war ' 
and against enemies, when laws are proverbial- 
ly silent, they are of no avail. What enemy 
now arrayed in arms can be indicted ; or, if in , 
dieted, convicted under the most stringent of 
penal statutes ? Not Jefferson Davis himself 
Why then painfully construct this legislative : 
verbiage? Why these now penalties for trea ' 
son, which, from the nature of the case, cannot 
be enforced in this hour of our need ? Why I 
not see things as they are, and do what the [ 
moment requires? The War Powers of Con- 
gress are ample ; but in time of war a mere 
penal statute against a public enemy is not so j 
much as a pop gun. j 

But there are Senators who claim these vast | 
War Powers for the President, and deny them ' 
to Congress The President, it is said, as Com- '■ 
mander-in Chief, may seize, confiscate, and lib- [ 
erate under the Rights of War : but Congress j 
cannot direct these things to be done. Pray, 
sir, where is the limitation upon Congress ? : 
Read the text of the Constitution, and you will j 
find its powers vast as all the requirements of j 
war. There is nothing which may be done 
anywhere under the Rights of War, which may 
not be done by Congress. T do not mean to 
question the powers of the President in his 
sphere, or of any military commander within 
his department. But I claim for Congress all 
that belongs to any Government in the exercise 
of the Rights of War. And when I speak of 
Congress, let it be understood that I mean «?i 
act of Congress, passed according to the require- 
ments of the Constitution by both Houses and ; 
approved by the President. It seems strange I 
to claim for the President alone, in the exercise 
of his single will, War Powers which are de- 
nied to the President in association with Con- 
gress. Surely, if he can wield these powers 
alone, he can wield them in association with 
Congress; nor will their efficacy be impaired 
when it is known that they proceed from this i 
associate will, rather than from his single will 
alone. The Government of the United States 
appears most completely in an act of Congress. 
Therefore war is declared, armies are raised, 
rules concerning captures are made, and all ar- 
ticles of war regulating the conduct of war are 
established by act of Congress. It is by 
act of Congress that the War Powers are all 
put in motion. When once put in motion, the 
President must execute them. But he is only 
the instrument of Congress, under the Consti- 
tution of the United States. 



It is true the President is Commander-in- 
Chief; but it is for Congress to make all laws 
necessary and proper for carrying into execu- 
tion his powers ; so that, according to the very 
words of the Constitution, his powers depend 
upon Congress, which may limit or enlarge 
them at its own pleasure. Thus, whether you 
regard Congress or regard the President, you 
will find that Congress is the arbiter and regu- 
lator of the War Powers. 

Of the pretension that all these enormous 
powers belong to the President and not to Con- 
gress, I try to speak calmly and within bounds. 
I mean always to be parlimentary. But a pre- 
tension so irrational and unconstitutional, so 
absurd and tyrannical, is not entitled to respect. 
The Senator from Ohio, [Mr. Wadk,] in indig- 
nant words worthy of the Senate, has branded 
it as slavish, and handed it over to judgment. 
Born in ignorance, and pernicious in conse- 
quences, it ought to be received with hissings 
I of contempt, and just in proportion as it ob- 
tains acceptance, with execration. Such a pre- 
tension would change our Government from a 
Government of law to the Government of a 
military dictator. It would degrade our proud 
constitutional Republic, where each depart- 
ment has its appointed place to one of those 
shortlived vulgar despotisms which have ap- 
peared occasionally as a warning to mankind. 
That this pretension should be put forward in 
the name of the Constitution is only another 
illustration of the effrontery with which the Con- 
stitution is made responsible for the ignorance, 
the conceit, and the passions of men. Sir, in 
the name of the Constitution, which I have 
sworn to support, and which, according to my 
ability, I mean to maintain, I protest against 
this new fangled effort to foist into it a preten- 
sion abhorrent to liberty, reason, and common 
sense. 

At the risk of repetition, but for the sake of 
clearness, let me now repeat the propositions 
on which I confidently rest. 

1. The Rights of Sovereignty are derived 
from the Constitution, and can be exercised 
only in conformity with the requirements of the 
Constitution : so that all penal statutes, pun- 
ishing treason, must carefully comply with these 
requirements. This is the case of the bill in- 
troduced by the Senator from New Hampshire, 
[Mr. Clark.] 

2. The Rights of War are under the Consti- 
tution in their origin, but outside the Constitu- 
tion in their execution. In other words the Con- 
stitution confers the Rights of War, but sets no 
limits to them, so that statutes to enforce them 
are not to be regarded as mere penal statutes, 
restricted by the Constitution. Bat these rights 
belong to a state of war, and necessarily cease 
with the war. This is the case of the House 
bills now under discussion. 

.3. Rebels in arms are public enemies, who 
I can claim, no safeguard from the Constitution, 



and they may be pursued and conquered ac- 
cording to the Rights of War. 

4. All rebels are criminals, liable to punish- 
ment according to penal statutes, aud in all 
proceedings against them as such, they are sur- 
rounded by the safeguards of the Constitution. 

5. The Rights of War may be enforced by 
act of Congress, which is the highest form of 
the national will. 

If these conclusions needed the support of 
authority, they would find it in John Quincy 
Adams. His words have been often quoted, 
without perhaps fully considering the great 
weight to which they are entitled. At an early 
day, when Secretary of State, under a slave- 
holding President, with eminent slaveholders 
in the Cabinet, in the discharge of his official 
duties, as the advocate of his Government, he 
had claimed under the treaty of Ghent compen- 
sation for slaves liberated by the British armies, 
and he had argued against any such liberation 
under the Rights of War. A full knowledge 
of his convictions on this occasion might, per- 
haps, disclose the repugnance, or, to borrow 
his own words, " the bitterness of heart," with 
which he discharged his duty. It is known, by 
avowals afterwards made in the House of Rep- 
resentatives, that on at least one occasion he 
acted as Secretary of State contrary to his con- 
victions. " It was utterly against my judg- 
ment and wishes ; but I was obliged to submit, 
and prepared the requisite dispatches." (Con- 
gressional Globe, Twenty-Seventh Congress, 
second session, 1841-42, vol. 2, p. 424 ) Such 
was his open declaration in the House of Rep- 
resentatives with regard to an important nego- 
tiation which he had conducted. But what- 
ever may have been his convictions at that 
time, it is beyond question, that afterwards, in 
his glorious career as a Representative, when 
larger experience and still maturer years had 
added to his great authority, and he was called 
upon in Congress to express himself on this 
important question, we find him reconsidering 
his earlier diplomatic arguments, and, in the 
face of the world, defiantly claiming not only 
for Congress, but for the President, and every 
military commander within his department, the 
full power to emancipate slaves under the 
Eights of War. If these words had been hastily 
uttered, or, if once lettered, they had been after- 
wards abandoned, or if they could in any way 
be associated with the passions or ardors of 
controversy, as his earlier words were clearly 
associated with the duties of advocacy, they 
might be entitled to less consideration. But 
hey are among the later and most memorable 
utterances of our greatest master of the law of 
nations, made under circumstances of peculiar 
solemnity, and several times repeated, after in- 
tervals of time. 

It was on the 25th May, 1836, that John 
Quincy Adams first expounded in the House 
of Representatives what he called "the War 



Power, and treaty-making power of Congress." 
Then it was that he declared : 

" From tho iustunt that your slaveholding Stales become 
the theatre of war, civil, servile, or foreign, from that in- 
stant the war pcnvers of Conffress extend lo interference with 
the institution of slavery in every way iu which it can be 
interfered with, from a claim of indemnity for slaves taken 
or destroyed, to the cession of tSe State burdened with sla- 
very to a foreign Power." 

Again, on the Yth June, 1841, after many 
years of reflection and added experience in 
public life, he shook the House by showing 
that universal emancipation might be accom- 
plished through this supreme power. 

Afterwards, in April, 1842, for the third time, 
he stated the doctrine in the House of Repre- 
sentatives, aud challenged criticism or reply. 
I forbear toread the whole speech, though, con- 
sidering the circumstances under which it was 
made, it may be accepted as a final statement 
of unquestionable law. An extract will suffice : 

'' I would leave that instil\ition to tlie exclusive consid- 
eration and management of the States more peculiarlj' in- 
terested iu it just as long as they can keep it within their 
own bounds. So far, I admit that Congress has no power to 
meddle with it. As long as they do not s'.ep out of their 
own bounds, and do not put the question to the people of 
the United States, whose peace, wellare, and liappiuess 
are all at stake, so long I will agree to leave them to them- 

" 1 believe that so long as the slave States are able to sus- 
tain then' institutions without going abroad or calling upon 
other parts of the Union to aid them or act on the subject, 
so long I will consent never to interfere. I have said this, 
and 1 repeat it ; but if they come to the free States and say 
to them, 'you must help us to keep down our slaves ; you 
must aid us in an insurrection and a civil war,' then 1 say, 
that with that call cmnes a full and plenary power to this 
House and to the Seriate over the whole subjeet. It is a war 
powci'. I say it is a war power ; and when your country is 
aelually in war, whether it bo a war of inVasion or o war 
I 'f insarreclion. Congress has power to cany on the war, and 
must carry it tm according to the laws of war ; and by the 
laws of war, an Invaded country has all its laws and muni- 
cipal institutions swept by the board, aud martial law lakes 
the place of them." 

And then again he announces, in words fur- 
ther applicable to the present hour: 

" Nor is this a mere theoretic statement. Slavery was 
abolished in Colombia, first by the Spanish General Murillo, 
aud secondly by the American General Bolivar. It was 
abolished by virtue of a military command given at the 
head of the army , aud its abolition continues to be law to 
this day. ********* 

" I might furnish a thousand proofs to show that the pre- 
tensions of gentlemen to the sanctity of their m -nicipal in- 
stitutions under a state of actual invasion and of actual war, 
whether servile, civil, or foreign, is wholly unfounded, and 
that tho laws of war do, in all such cases, take precedence. 
I lay this down as the law of nations. I say that the mili- 
tary authority takes for the time the place of all municipal 
institutions, and of slavery among the rest ; and that, under 
that state ol things, so far from its being true that the States 
where slavery e.xists have the exclusive management of the 
subject, uot only the Presiilent of the United States, but 
the commander of the Army, has power to order the uni- 
versal emancii^ation of tho slaves. / have given here more 
in detail a principle which I have asserted on this floor before 
now, and rf xehich I have no more doubt than that you, sir, 
occupy that chair." — Coigressional Globe, Twenty -Seventh 
Congress, second session, 1841-4'2, part 1, p. 429. 

The representatives of slavery broke forth in 
characteristic outrage upon the venerable ora- 
tor, but nobody answered him. And these 
words have stood ever since as a landmark of 
public law. You cannot deny the power of 
Congress to liberate the slaves without remov- 



6 



ing this landmark. Vaia work. It is not less 
rm than the Constitution itself. 
Thus do I vindicate for Congress all the 
Rights of War. If, assuming the powers ol 
Congress, any further question be raised as to 
the extent of these rights, I reply, briellv, that 
there is no right which, according to received 
authorities, may be exercised against a hostile 
sovereign or prince, embracing, ofcourse, confis- 
cation of property, real as well as personal, 
which may not in our discretion be recognised 
against a rebel enemy; and the reason is obvi- 
ous. Whatever may be the mitigations of the 
Rights of War introduced by modern civiliza- 
tion, under which private property in certain 
cases is exempted from confiscation, this rule 
does not apply to cases where there is a direct 
personal responsibilUy for the war ; and here 
is the precise difference between the responsi- 
bility of the sovereign or prince and the respon- 
sibility of the private citizen ; the private cit- 
izen is excused, but the sovereign or prince is 
always held responsible to the full extent of 
his property, real as well as personal. But 
every rebel who has voluntarily become a pub- 
lic enemy has assumed a personal responsibil- 1 
ity for which, according to acknowleged princi- 1 
pies of public law— especially if he has taken : 
high ofSce in the rebel government— he may 
be held liable to the full extent of his property, I 
real as well as personal. Every citizen who J 
voluntarily aids in armed rebellion is a hostile ' 
sovereign or prince. A generous lenity may ! 
interfere to limit his liability, but on principles j 
of public law he is in the very condition of | 
Shylock when his cruelty was arrested by the i 
righteous judge: 



" If tlioii dost shed 
One drop of Christian blood, thy lands and goods 
Arc, by tho laws ol" Venice, confiscate 
Uiito the State of Venice." 

Such, sir, is the extent of the powers which 
may be exercised by Congress. Of course, it 
will be for Congress to determine the degree 
of severity or lenity which it will adopt. In 
claiming these powers to the full extent I yield 
to no Senator in that spirit of clemency which, 
next to justice, is the grace and oroament of 
success. 

Mr. President, such are the principles on which 
we are now to act. In announcing them and 
reducing them to practice, Congress will enlarge 
its already accumulated claims to public grat- 
itude. 

The present Congress has already done much 
beyond any other Congress in our history. 
Measures which for long years have seemed at 
tainable only to the most sanguine hopes, have 
triumphed. Emancipation in the national cap- 
ital ; freedom in all the national Territories ; 
the offer of ransom to help emancipation in the 
States; the recognition of Hayti and Liberia; 
the treaty with Great Britain for the suppres- 
sion of the slave trade ; the prohibition of the i 



I return of fugitive slaves by military ofBcers ; 
homesteads for actual settlers on the public 
I lands ; a Pacific railroad ; endowments of ao'- 
I ricultural colleges out of the public lands''; 
j such are some of the achievements by which 
I the present Congress will be historic. There 
I have been victories of war, won on many hard- 
; fought fields ; but none comparable to these vio- 
I tories of peace. Besides these measures of 
' unmixed beneficence, the present Congress has 
i created an immense Army and a considerable 
I Navy, audit has provided the means for all 
our gigantic exenditures by a tax, which in 
itself is an epoch. 

Thus, in the prosecution of the warCono^ress 
has already exercised two great powers : 'first, 
to raise armies ; and secondly, to tax. Both 
of these powers bear directly upon our loyal 
fellow-citizens everywhere throughout the coun- 
try. Sons, brothers, and husbands, are taken 
frotn happy homes, and from the concerns of 
business, leaving vacant places never, perhaps, 
to be filled again, and harried away to wage a 
fearful war. But beyond this unequaled draft 
upon the loyal men of the country, summoning 
them to the hazards of battle, there is another 
unequaled draft upon the loyal property of the 
country, presenting a combined draft without 
precedent upon men and upon property. If 
you would find a parallel to the armies raised, 
you must go back to the forces marshalled un- 
der Napoleon in the indulgence of his unbri- 
dled ambition. If you would find a parallel to 
the tax, you must go further back to that early 
day of which the Gospel, in its simple narrative, 
says: "And it came to pass about these times 
that a decree went out from Ctcsar Augustus, that 
all the world should be taxed." A similar de- 
cree is about to go out from you, not, indeed, to 
tax all the world, but to tax a large and gene- 
rous people, who for the first time will listen 
to such an edict. There have been taxes here 
before ; and in other countries there have been 
taxes as enormous, but there has been no such 
tax here before ; and in no other country has 
any such tax been levied at once without the 
preparation and education of loug-contiaued 
taxation. 

Confiscation and liberation are other War 
Powers of Congress, incident to the general 
grant of such powers, which it now remains for 
us to employ. So important are they, that 
without them I fear all the rest will be employ- 
ed in vain. Yes, sir, in vain do we gather 
mighty armies, and in vain do we tax our people, 
unless we are ready to grasp these other means 
through which the war can be carried to the 
homes of the rebellion. I mean especially ihe 
criminal homes of the authors and leaders of 
all this wickedness. By the confiscation of 
property the large rebel estates, where treason 
laid its eggs, will be broken up, while, by the 
liberation of slaves, the rebels will be deprived 
of an invaluable ally, whether in labor or in 



7 



battle. But let me confess frankly that I look 
with more hope and confidence to liberation 
than to confiscation. To give freedom is nobler 
than to take property, and, on this occasion, it 
cannot fail to be more efficacious, for in this 
•way the rear-guard of the Rebellion will be 
surely changeo into the advance guard of the 
Union, There is in confiscation, unless when 
directed against the criminal authors of the 
rebellion, a harshness inconsistent with that 
mercy which it is always a sacred duty to cul- 
tivate, and which should be manifest in pro- 
portion to our triumphs, " mightiest in the 
mightiest.'' But liberation is not harsh, and 
it is certain, if properly conducted, to carrj 
with it the smiles of a benignant Providence. 

The war began in slavery, and it can end 
only with the end of slavery. It was set in 
motion and organized by the slave oligarchy, 
and it cannot die except with this accursed 
oligarchy. Therefore, for the sake of peace 



and in order to restore the Union, every power 
should be enlisted by which slavery, which is 
the soul of the war, can be reached. Are you 
in earnest ? Then strike at slavery. Libera- 
tion is usually known as a charity ; but while 
none the less a charity, comprehending all 
other charities, it is now, in the course of 
events, a necessity of war. Only through libe- 
ration can we obtain that complete triumph, 
bringing with it assured tranquillity, without 
which the war will stop merely to break forth 
anew, and peace will be nothing but an uneasy 
truce. Among all the powers of Congress in- 
cident to our unparalleled condition, there is 
none so far-reaching, as there is none so benef- 
icent; there is none so potent to beat down re- 
bellion, as there is none other by which peace 
can be made truly secure. Powerful and 
beautiful prerogative ! The language of Chat- 
ham will not be misapplied, when I call it the 
■' master feather of the eagle's wing." 



WASHINGTON, D. C. 

SCAMMELL & CO., Psinters, corner of Indtaxa avenue and Second street, 3rd floor. 

18G2. 



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